Rama Ch. Sahoo vs Krushna Chandra Dhar

R.K. Pattanak, J

Application under Section 482 Cr.P.C. is filed by the petitioner with  a  relief  to  quash  the impugned order  dated 22.11.2019 passed in ICC Case No.114 of 2018 by the learned J.M.F.C,, Talcher on the ground inter alia that it is untenable in law and thus, liable to be interfered with in exercise of the Court’s inherent jurisdiction.

According to the petitioner, the opposite party has filed the complaint against him alleging commission of an offence punishable under Section 138 of the Negotiable Instrument Act by claiming that he had advanced a friendly loan of Rs.9,20,000/- on 19.08.2017 and in that connection, a cheque was issued by him which could not be honoured and encashed due to insufficiency of fund. It is contended by the petitioner that the learned court below did not examine the source of income of opposite party, whether, he had the capacity to advance such a huge amount as loan and not only that, it could not be established as to if the signature on the cheque belonged to him or not without examining any officer of the Bank and under such circumstances, in order to discharge the reverse presumption, an application was moved for sending his specimen signatures to tally the signature found on the cheque in question for its examination by an expert and opinion but the same was rejected by the impugned order dated 22.11.2019.

None appears for the petitioner. However, the opposite party contended that the learned court below did not commit any wrong or error while rejecting the request of the petitioner. It is further contended that the petitioner filed the application for sending the cheque with specimen signature for scientific examination and opinion at a belated stage with an intention to delay disposal of the complaint, inasmuch as, there was no necessity for the same.

As per the opposite party, the learned court below rightly appreciated the need of any opinion from a hand writing expert, in so far as the present case is concerned, with reference to Section 45 of the Indian Evidence Act and therefore, the impugned order dated 22.11.2019 is absolutely justified. The opposite party supported the reason provided by the learned court below, while rejecting the application of the petitioner.

The learned court below did not find favour with the argument of the petitioner. It is the conclusion of the learned court below that the evidence of the hand writing expert is not normally sufficient for accepting a defence which may further need corroboration. The court did not accede to the request of the petitioner for having not placed any material endorsing his original signature. In fact, the learned court below did not find any evidence led from the side of the petitioner, while seeking examination of the signature appearing on the cheque by an expert. It is made to suggest from the impugned order dated 22.11.2019 that the petitioner did adduce no evidence in defence before seeking such examination of cheque by an expert.

In the instant case, the learned counsel for the opposite party cited a judgment of the Supreme Court in the case of Rajeshbhai Muljibhai Patel and others Vrs. State of Gujarat and another decided on 10th February 2020 in Criminal Appeal Nos.251-252 of 2020 besides an order dated 04.11.2019 passed in SLP (Crl.) Nos.9836 of 2019 in the case of Oriental Bank of Commerce Vrs. Prabodh Kumar Tewari and another while contending that a criminal proceeding cannot be quashed for the reasons asked for, inasmuch as, the petitioner is required to discharge the onus and statutory presumption by adducing rebuttal evidence. It is also contended that opinion of handwriting expert is although a relevant piece of evidence, it is not conclusive in nature and in so far as the present case is concerned, the same could not have been acceded to for the reason that at no point of time, any such objection was raised by the petitioner on the signature found on the cheque.

It is made to suggest that at the fag end of the proceeding in I.C.C. No.114 of 2018, the petitioner moved the learned court below to send his specimen signatures to the finger print expert to tally the same with the one appearing on the cheque. The petitioner challenged the claim of the opposite party on number of grounds, such as, on the source of income, absence of signature on the notice issued under Section 138 of the N.I. Act etc. besides a request for sending the cheque carrying his signature along with specimen signatures for the purpose of examination by an expert. In the considered view of the Court, the other grounds which have been raised questioning the genuineness of the claim of opposite party regarding source of income etc. it can be decided by the learned court below on the basis of evidence led by the parties. It is not revealed from the record, if the petitioner ever questioned his signature on the cheque as not that of his own. Rather, the opposite party apprised the Court that it was a cheque, which was issued by the petitioner carrying his signature thereon, which was not objected to by the Banker, which returned the same only with an endorsement of insufficiency of fund. According to the Court, if the signature on the cheque claimed not to be that of the drawer and it is from the very inception, under such circumstances, depending on the nature of evidence received, a court may consider transmitting the cheque along with specimen signatures for the purpose of examination and scientific opinion. The court may also compare the signatures to tally with the signature appearing on the cheque. In the present case, it does not appear that the petitioner has really questioned the genuineness of the cheque vis-a-vis his signature appearing thereon. Rather, the opposite party claimed that the petitioner never ever disputed or denied his signature on the cheque, inasmuch as, the evidence on record to be completely silent in respect thereof. The drawer of the cheque is to dispute about the signature appearing on the cheque as of his own from the very beginning. If it is so and evidence is brought on record and ultimately, the court finds that either a comparison by itself is required, it can do so, or on being moved by the drawer by having regard to the nature of evidence on record may even refer or transmit the cheque in question along with specimen signatures for being examined by an expert. In absence of any such material shown from the side of the petitioner, it would not be justified to direct sending the cheque and the specimen signatures for the purpose of scientific comparison. At least, a foundation should be laid down and evidence adduced, while demanding examination of the cheque by an expert. It is no doubt correct to suggest that opinion of an expert is relevant in view of Section 45 of the Indian Evidence Act and a piece of evidence admissible but not always conclusive.

Having regard to the above, the Court is of the considered view that no material has been brought on record to suggest that the petitioner really ever challenged the genuineness of the cheque carrying his signature and in fact, on that ground, opposed the claim of the opposite party from the very inception. It is reiterated that unless foundational facts and evidence are submitted, there cannot be any necessity felt to direct scientific examination of signature of cheque and its comparison with specimen signatures, as is presently claimed by the petitioner. In other words, the Court does not find any reason to interfere in the impugned order dated 22.11.2019.

Hence, it is ordered.

In the result, the application under Section 482 Cr.P.C. filed by the petitioner stands dismissed. As a necessary corollary, the impugned order dated 22.11.2019 passed in I.C.C. Case No.114 of 2018 by the learned J.M.F.C., Talcher is hereby affirmed, for the reasons discussed as aforesaid.

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